FOCUS
ON
DIPLOMATIC SECURITY
SECURITY CLEARANCES:
KNOW YOUR RIGHTS
O
YOU ARE ENTITLED TO HAVE AN AFSA
REPRESENTATIVE AND ATTORNEY PRESENT
DURING QUESTIONING.
BY J. MICHAEL HANNON
n a quiet Friday morning,
you receive a telephone call from your supervisor
instructing you to report to the small embassy conference room downstairs. Your post doesn’t get many visitors, so you’re surprised to find two serious-looking
people in business attire already in the room when you
arrive. Placing their credentials on the table, they
explain that they’re special agents with the State
Department’s Bureau of Diplomatic Security who have
come all the way from Washington, D.C., to talk with
you.
At first they are rather vague about the purpose of
their visit, saying they just want to ask you a few things.
The questions are indirect, even friendly, at first, but it
soon becomes clear that the interview has been scripted ahead of time — and you are the only participant
who does not know what is going on. When you press
the agents, they eventually tell you that the department
has received “derogatory information” that raises
doubts as to your suitability for a security clearance.
But they refuse to describe the specific allegations,
much less their source.
You protest that the charges are absurd, but they
press you to answer their questions anyway, suggesting
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that cooperation will clear the matter up quickly. The
agents are then supposed to present you with one of
two written “warnings”: either a Garrity Warning or a
Kalkines Warning, both named after court cases. The
Garrity Warning is intended to preserve the government’s ability to use your answers against you in any
criminal proceeding. You are told that the interview is
completely voluntary, and if you choose not to answer
you cannot be disciplined for that refusal. This does
not necessarily mean that there is an interest in prosecuting you.
The Kalkines Warning is given when the government has chosen to forgo any criminal prosecution
against you ahead of time. In that case, you will be
compelled to answer questions at the risk of losing your
job, but your answers may not be used against you in
any criminal prosecution. This does not mean, however, that there will not be a criminal prosecution. The
use of that warning simply means that the government
is not planning a criminal prosecution at that moment.
Whichever warning the agents give you, be aware
that they may attempt to minimize its seriousness to
induce you to volunteer information.
If you are already confused at this point, you are not
FOCUS
alone.
In fact, many State
State is permitted to
Once DS refers a case for crimDepartment investigators apparinal prosecution, the department
continue suspension of an takes the position that the matter
ently share your confusion, particularly those in the Inspector
is out of its hands, leaving you to
individual’s clearance
General’s Office. In our legal
await the exercise of discretion by
practice representing Foreign
the prosecutor’s office and/or a
“until the relevant issues
Service personnel in such situagrand jury. And the only time
tions, we have found that agents
restriction imposed on these bodhave been fully resolved.” ies is the statute of limitations for
sometimes give either no warning or the wrong warnings.
the particular crimes you are being
(Complicating matters further,
indicted for. But for purposes of
there are a multiplicity of warning forms floating
this article, let’s assume they do not refer your case.
around among different government agencies.) But
Minimal Due Process Only
even if the agents follow the proper procedures in all
Upon arrival in Washington, you surrender your
respects, there is one key piece of information they are
badge and diplomatic passport and are given a new
not required to volunteer: the fact that you have the
badge. You can get around the building, but you canright to have an AFSA representative and/or attorney
not access classified information or escort guests, and
present during the questioning.
you must leave the premises by 7 p.m. Ideally, you are
Even if the agents do choose to advise you of that
reassigned to a temporary position in which you can
right in this particular scenario, they may also note that
earn your pay doing something that does not require a
it will take time and effort to arrange that, delaying a
security clearance. But that does not always happen, so
resolution of your case.
you might spend weeks or months sitting at home with
You want to believe the agents; after all, you have
nothing to do, receiving your salary and wondering
nothing to hide, and you are sure the “derogatory inforwhat will happen next.
mation” is silly on its face. So you go ahead and answer
The answer to that may surprise you.
their questions, watching as they take copious notes
Under State Department regulations and estababout what you tell them.
lished law, the Bureau of Diplomatic Security has the
If you’re lucky, the agents thank you, file a report
sole authority to determine whether your security
indicating that there is no truth to the allegations, and
clearance should be suspended on the basis of “all facts
that’s the end of the matter. But it may also happen
available upon receipt of the initial derogatory inforthat they tell you your clearance has already been susmation.” The standard to be applied is to determine
pended pending a full investigation, and you are being
whether it is “in the interests of national security” to
recalled to the department. The agents will then give
continue your security status or to suspend it.
you a written notice of suspension, but typically that is
The regulations further provide that DS investigaas cryptic as the verbal information they had provided.
tions must be “reported in a timely manner” and issues
The Bureau of Diplomatic Security is also authorized
requiring temporary suspension of clearance must be
to refer your case to the Department of Justice or to a
resolved “as quickly as possible (normally within 90
United States Attorney’s Office for consideration of crimdays).” The department is, however, permitted to coninal prosecution. The criminal jurisdiction of United
tinue suspension of an individual’s clearance “until the
States courts reaches overseas, as the United States may
relevant issues have been fully resolved.”
prosecute in this country any conduct which has an effect
If that seems open-ended, it is. Today, given the
on commerce between the United States and any foreign
security issues facing the department, the resources
country, a standard which is broadly construed.
available to pursue these investigations are sorely
J. Michael Hannon is with the law firm of THOMPSON
taxed. Our law firm has Foreign Service clients who
have been drawing their salaries while on suspension
O’DONNELL, LLP. The firm has represented Foreign
for well over 180 days. And AFSA has clients who have
Service employees and their families for over 50 years.
SEPTEMBER 2005/FOREIGN SERVICE JOURNAL
59
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had their clearances suspended
Once DS moves to revoke a security clearance, the employee
for more than two years.
must be provided with a written
security clearance, the
In the absence of a criminal
explanation of the grounds for the
referral or a decision by the prosrevocation. However, that docuemployee is only entitled to ment need only be as detailed as
ecutor’s office not to accept the
case, DS completes the investinational security interests permit.
“minimal due process,”
gation in its own time. If it
State Department regulations also
determines an employee’s conrequire that the letter advise the
which includes notice and
tinued security clearance is “not
affected employee of any recourse
clearly consistent with the interavailable and the procedure for
an opportunity to respond.
est of the national security,” DS
requesting access to his or her
prepares and submits a recominvestigative file.
mendation for revocation or susThe Appeals Process
pension of clearance eligibility to the Director of the
The employee is provided a reasonable opportunity
Diplomatic Security Bureau for approval.
(normally 30 days) to reply in writing and to appeal to
At this point, the employee is allowed to ask for doca three-person management-level panel known as the
uments in order to prepare a rebuttal to the proposal to
Security Appeal Panel for review of the security deterrevoke the security clearance. He or she is also
mination. The Under Secretary for Management
informed of the right to representation, and provided
chairs the panel; the other two members are the
with the entire investigatory file “as permitted by
Director General of the Foreign Service and the
national security and other applicable law.”
Assistant Secretary for Administration. Personal
More likely than not, these documents will not
appearance is permitted before the panel, but direct
include the identity of the source of the “derogatory
and cross-examination of witnesses is not permitted.
information.” It is also unlikely that the witnesses
The appeal panel renders the final departmental decirelied upon by DS will even be identified in the invession concerning the employee’s security clearance with
tigative file. There are no rules of evidence that pertain
a recommendation to reinstate or revoke clearance,
to a DS investigation or restrain its conclusions.
which ultimately determines the individual’s employaThe government has the initial burden of proving —
bility by State.
“based on substantial evidence” (as opposed to the familIf the panel upholds the bureau’s decision to revoke
iar “beyond a reasonable doubt” standard) — that it is not
the security clearance, the employee will likely be proin the national interest to continue the employee’s secuposed for separation for cause, because the department’s
rity clearance. This is often a minimal standard, because
position is that all Foreign Service employees must mainthere need only be a “rational basis” for State
tain a security clearance as a condition of employment.
Department action, due to the level of trust required for
The employee is entitled to a hearing before the Foreign
access to classified information. Once the government
Service Grievance Board, but the board may not review
meets its burden, it is then the responsibility of the
the merits of the underlying security revocation. The
employee to refute or rebut the government’s case.
board’s review is limited to whether the procedural
The limited nature of this process is deemed by the
requirements for revocation of a clearance have been
courts to satisfy due process concerns because a security
met and whether separation of the employee serves the
clearance is not a species of property that the
“efficiency” of the Service.
Constitution protects with full-blown trial procedures. In
Federal courts do not have the subject matter jurisother words, because an employee does not “own” a
diction to review an agency’s national security clearance
security clearance, it can be revoked without a trial. The
decision. This restriction is rarely overcome. Employees
employee is only entitled to “minimal due process,”
have attempted to sue the State Department, arguing
which includes notice and an opportunity to respond.
that the security clearance revocation was retaliatory.
Pursuant to Executive Order 12968 (issued Aug. 4,
Even then, however, courts are often reluctant to inter1995), once the head of DS approves the revocation of a
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vene, out of concern that such a
Given the tremendous amount ee, it is vital for all employees to
review is an impermissible intruknow their rights and to call upon
of discretion given to DS and their advocates early in the
sion by the judicial branch into
the authority of the executive
process to interact with investigathe Security Appeal Panel, it tors and clearance adjudicators.
branch.
On occasion, a court might
Employees are guaranteed the
is vital for all employees to
find that the interest being purright to have an AFSA attorney
sued by the employee — for
and/or private attorney represent
call upon their advocates
example, a discrimination claim
them during a DS investigation
— is sufficiently important to
and throughout the security
early in the process.
permit a trial with appropriate
revocation process.
(If the
limitations on the disclosure of
employee remains overseas durclassified information. But even
ing the initial phase of the invesin these circumstances, the court might choose not to
tigation, as in the hypothetical situation described at the
review the basis for the security clearance revocation.
beginning of this article, AFSA attorneys will gladly
arrange to participate in meetings with the agents via
Know Your Rights
speaker phone.)
Given the tremendous amount of discretion given to
Again, note that DS is not required to inform
DS and the Security Appeal Panel, and the extremely limemployees of those rights: they must request such repited due process and appeal rights afforded to the employresentation. n
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